Town and Country Planning Act 1971–Appeal from enforcement notices–Houses alleged to be in multiple paying occupation–Apt description of the situation–Condition attached to notices requiring restoration to original condition–Secretary of State’s decision valid–Appeal dismissed–Observations on meaning of multiple paying occupation
This was an
appeal by A Lipson and E Lipson from a decision of the Secretary of State for
the Environment dated January 17 1976, whereby he upheld nine enforcement
notices served by the Salford City Council upon the appellants requiring
discontinuance of the use of the appellants’ properties for multiple paying
occupation and the restoration of the properties to their original condition.
A Rumbelow
(instructed by Betesh & Co, of Manchester) appeared for the appellants;
Harry Woolf (instructed by the Treasury Solicitor) represented the Secretary of
State. The second respondents, the Salford City Council, were not represented
and took no part in the appeal.
Giving
judgment, LORD WIDGERY CJ said: This is an appeal under section 246 of the Town
and Country Planning Act 1971, brought by Mr Lipson against the decision of the
Secretary of State for the Environment in respect of an appeal against certain
enforcement notices served under the same Act in respect of a variety of
properties in Salford. There were originally 10 enforcement notices. Of those,
no 10 has gone out of consideration as far as we are concerned because the
parties, we are told, have made an arrangement about it, so we are left, for
all practical purposes, with the remaining nine notices.
I go straight
to the Secretary of State’s decision letter for the relevant facts upon which
his conclusions are based. Paragraph 5 says this: ‘The inspector found as
facts, which are accepted, that each of the appeal properties’–that is the nine
remaining–‘contained two or more bed-sitting rooms and that at present there
were seven separate lettings, all bed-sitting rooms, in 240 Great Clowes
Street, with one bathroom and wc; seven lettings in 250 Great Clowes Street,
with two bathrooms and three wcs; five lettings on the first and second floors
of 273 Great Clowes Street, with two bathrooms and wcs; and three lettings, all
bed-sitting rooms, on the ground floor (15 The Priory), with one bathroom and
wc; five lettings in 275 Great Clowes Street, with one bathroom and wc; five
lettings in 285 Great Clowes Street, including one self-contained unit, and one
other bathroom and wc; five lettings in 287 Great Clowes Street, with one
bathroom and wc’–and so it goes on. I do not think I need burden the judgment
with greater detail, save to say that in the view of both the planning authority
and the Secretary of State that user of these premises justifies their
description as premises in multiple paying occupation.
These houses,
as the Secretary of State said, had two or three storeys when originally built.
No doubt they were originally single family occupations, possibly passing
through the stage of self-contained flats, but the situation when they first
came to the notice of the planning authority was as I described. The planning
authority acknowledge that all this had happened since 1963, and served the
enforcement notices to which I have referred. I look at one just to see the
relevance of it. I take one which was served on Mr Middleton in respect of 250
Great Clowes Street. It recites that he is the occupier of the land at that
address, it recites that the council of the City of Salford are the local
planning authority, and then comes the important recital: ‘It appears to the
council that after December 31 1963 there has been a breach of planning control
in that the said land has been developed by the making of a material change in
the use (thereof) to a use for the purpose of multiple paying occupation.’ Then one goes to the operative part of the
notice where the council, in exercise of their power contained in the Act,
require the recipient of the notice, within the period specified, ‘to
discontinue the use of the said land for the purpose of multiple paying
occupation and to restore the use thereof to that of a single dwelling-house or
single household.’ That enforcement
notice is, of course, based on sections 87 and 88 of the Act of 1971, and of
particular relevance is subsection (1)(d) of section 88, dealing with the time
within which enforcement action should be taken. This prevents enforcement
where it is shown ‘in the case of a notice not falling within paragraph (c) of
this subsection, that the breach of planning control alleged by the notice
occurred before the beginning of 1964.’
However, the
first question which we have to decide, and I think we have to decide on the
facts before the law was amended, is whether the enforcement notice, which I
have read out, aptly describes the factual situation found to exist at the time
it was served and I am bound to say that I cannot imagine language more
suitable to explain that situation than the phrase ‘multiple paying
occupation.’ That does not mean it is
the only possible way of describing such a situation. That does not mean the
phrase has anything inherent in it, except it appeals to me as being a very
good set of words to describe the picture which is found. Some support for that
is to be obtained from the case of Duffy and Banks v Pilling
which was heard in this court on June 17 1976 [(1977) 241 EG 607, [1977] 1 EGLR
126] and was also concerned with the phrase ‘multiple paying occupation.’ In Duffy’s case there were five men
living together in, as it were, a sort of mess. Duffy paid the rent and did the
buying and I think he did the cooking as well. The others were lorry drivers,
and working men of that kind, and Duffy charged them so much per week and they
all had, I have no doubt, a happy time in the house. In the course of argument
in this court the question arose as to whether or not that was properly to be
described as multiple paying occupation. We took the view, and the relevant judgment
is my own, that it was not a multiple paying occupation. The contrast which I
sought to
that what is contemplated here is not that there should be two or more people
living in the house but that there should be two or more people occupying parts
of the house in the common law sense of occupation meaning ‘exercising
control.”
Now that
exactly covered what I was seeking to say in Duffy, but I wish at once
to say that that is not intended, in every similar case hereafter, as an
authoritative proposition that there must be a situation of common law
occupancy in order to meet the meaning of those words. But the phrase ‘multiple
paying occupation’ is not a statutory phrase. It is a phrase which has come
into acceptance in the practice of town and country planning, and it does not
necessarily have one single inexorable meaning in all the contexts in which it
is used. Every time it is used you must look at it in its context and discover
what its meaning is. Notwithstanding anything in Duffy I have no
hesitation in saying that the phrase ‘multiple paying occupation’ in this case
was totally apt to deal with a situation which, as I read from the decision
letter, the inspector found. It will be apparent that the question of dates is
very important. If all these changes had occurred before 1964 nothing could
have been done about it. If the changes had occurred after 1963, then the
planning authority was in a position to take action. In such cases the onus is
upon an occupier to show, if he can, that the change occurred before 1964.
The way in
which the Secretary of State dealt with this point to be found in paragraph 7
of his letter, where he says this:
It appears
from the evidence that, in 1963 [a number of houses which he lists] were
rated as three flats, two flats and three flats respectively. These flats
appear to have been self-contained ones and consequently it is not considered
that their use constituted multiple paying occupation of the respective
premises. While the evidence of the rating valuation lists is not necessarily
regarded as conclusive it is considered that your clients have not discharged
the onus of proof which lies with an appellant that any of the appeal
properties were in multiple paying occupation before the beginning of 1964. The
appeals therefore fail on ground (d).
I do not
agree, for the reasons I have just given, with the proposition that
self-contained flats necessarily exclude multiple paying occupation. The point
is not really open to analysis in this case any longer because the Secretary of
State, I think, in the end has decided this point on the onus of proof, and in
any case, for reasons which I have made clear, it seems to me only too obvious
that in this case the phrase ‘multiple paying occupation’ is a perfectly good
phrase to use. Therefore, in so far as an attack is made on the description of
the development area, I would reject it. The real attack, I think, comes in the
next stage. The Secretary of State took the view–and I think quite rightly–that
assuming all this happened after 1963 it was still not appropriate for the
planning authority to seek to require the occupier of the land to resume a
particular use of the land. The point is quite important because section 87
makes it quite plain that the enforcement notice can require the landowner to
restore the land to its condition before the development took place. There is
nothing in the section which says that the landowner shall apply a positive use
to it. The notice, it will be remembered–or one of them at all events–had such
a requirement. The Secretary of State dealt with that by removing from the
notice any requirement which went beyond the restoration of the condition of
the premises. The point taken by Mr Rumbelow is that it is not possible to
carry out this requirement because he says nobody knows what the condition of
the premises was in 1963. I do not quite know why he says that. I asked him if
there was a finding of fact to that effect, and he said, No. In the ordinary
way, if you ask, and if you are painstaking, you can find out something about
the condition of a building five, six or 10 years ago. In any case, it does not
seem to me that the requirement of the notice to restore the condition of the
premises to that which it was before the development took place is bad, simply
because, if it be the fact, the landowner says, ‘I do not know what this
involved.’ If he does not know what it
involved, presumably nor does anyone else, and if nobody else knows what it
involved he cannot be expected to observe the requirements of the notice. In
other words, he will have an effective defence in any proceedings brought
against him.
There is a
whisper of a similar consideration in the case of Trevors Warehouse v Secretary
of State for the Environment (1972) 23 P & CR 215. That was a case
where the local planning authority tried to preserve, on service of an
enforcement notice, a certain limited use that they regarded as not being
capable of restraint. Criticism was made of the language used to describe this,
and it was said it was not effective, it was ambiguous and vague, and
unenforceable. In the short judgment I delivered I pointed out that in this
kind of situation a local authority cannot do better than its best, and if the
language is somewhat obscure, somewhat ambiguous, then to some extent that must
be accepted. It is only when it is quite evident that better alternatives were
available that one could make any kind of progress in this kind of argument.
For those
reasons it seems to me that this case, complicated as it has become, really
resolves itself into two simple points, the first being whether the notice
effectively described the development, and I think it did: and the second,
whether the requirement of the amended notice was in any way a breach of the
law, and I think it was not. For these reasons I would dismiss this appeal.
EVELEIGH J: I
agree. The difficulty in this case seems to me to have arisen by attempting to
argue that Duffy’s case gives an authoritative and exclusive meaning to
the phrase ‘multiple paying occupation.’
Those words are no more than ordinary words to afford particulars of the
breach alleged. I agree, for the reasons stated by my Lord, that they cover
this particular case and that for the other reasons given the appeal must be
dismissed.
SLYNN J also
agreed and the appeal was dismissed with costs.
